The Nation Newspaper

Category: Law

  • VAT: Stay action, court tells FIRS, Retail Council, Supermarket Operators

    VAT: Stay action, court tells FIRS, Retail Council, Supermarket Operators

    The Federal High Court in Lagos has directed the Federal Inland Revenue Service (FIRS) and three others to maintain status quo in their tax dispute with the Retail Council of Nigeria and National Association of Supermarket Operators.

    Justice Ambrose Lewis-Allagoa interpreted the order as meaning the FIRS is prevented in the interim from accessing the premises or data of Retail Council of Nigeria and National Association of Supermarket Operators members.

    He ruled that the order subsists pending the determination of a pending suit at the Court of Appeal between the FIRS and the Rivers State Government over Value Added Tax (VAT).

    The judge also granted an order staying the hearing of all pending applications or processes filed or that may be filed in this suit, pending the determination of the suit between the FIRS and the Rivers State Government.

    The Retail Council of Nigeria and National Association of Supermarket Operators are the first and second plaintiff/applicants in the suit.

    The FIRS, Softrusttechnologies Limited, the Minister of Finance, and the Attorney-General of the Federation are the first to fourth defendants/respondents in the suit marked FHC/L/CS/1843/2021.

    The judge granted the orders on April 28, 2022 after hearing Messrs. R. Ayanbiyi, S. Lawal and A. Giwa move a March 22, 2022 motion on notice for the plaintiff/applicants and A. O. Abdul for the 1st and 4th defendants.

    Justice Ambrose Lewis-Allagoa held: “The court after careful consideration of the application and submission of counsels, it is hereby ordered as follows:

    “An order is granted staying the hearing of all pending applications or processes filed or that may be filed and/or further proceedings of this suit… pending… the final determination of Appeal No: CA/PH/282/202; between the Federal Inland Revenue Service and the Rivers State Government and/or resolution of all issues and questions relating to the constitutional issue of authority to impose, collect or administer Value Added Tax (VAT) in the various states of the Federation.

    The judge also directed parties to maintain status quo, noting that it is “to be construed or interpreted against the execution of (or effectuation of any steps towards) the 1st Defendant’s threat to request or gain access into the Plaintiffs members’ business premises and/or records, data or information stored or otherwise residing in computers or other electronic devices or implementation of Sections 26 (1) (e) of the FIRS Act 2007”, pending the FIRS, Rivers appeal.

  • 2023: Has constitution amendment disqualified Jonathan?

    2023: Has constitution amendment disqualified Jonathan?

    Ex-President Goodluck Jonathan’s cryptic response in Abuja on April 22 about his rumoured interest in the presidential election has ignited a debate among Nigerians, particularly legal experts, about his eligibility to contest, given Section 137(3) of the Fourth Alteration to the Constitution, amongst other provisions. ERIC IKHILAE writes.

    Before April 22, 2022. the idea of ex-President Goodluck Jonathan being drafted to contest the next presidential election as a candidate of the All Progressives Congress (APC) was considered speculation, often amplified by the occasional appearances of his posters in strategic locations across the country.

    But, on April 22, Jonathan spoke publicly on the issue when a group of individuals, claiming to be his supporters, visited him in Abuja. Although the ex-president sounded ambivalent, he was not categorical in denying the possibility of him contesting the next presidential election.

    He was quoted as telling his visitors: “I cannot declare because some processes are still ongoing. Yes, you are calling on me to come and declare for the next election. I cannot tell you I’m declaring. The political process is ongoing; just watch out. The key role you must play is that Nigeria must get somebody that will carry young people along.”

    The April 22 incident has since ignited a huge debate about Jonathan’s eligibility or otherwise for the next presidential election in the face of some provisions in the 4th Alteration to the Constitution and existing judicial authorities.

    While many argue that the provision in Section 137(3) to the Constitution, among other provisions, have disabled Jonathan from further seeking to be president, others hold contrary views, insisting that he was not encumbered by any known law or judicial authorities.

    Jonathan’s story

    Jonathan, who assumed office on May 29, 2007 as a Vice President, with the late Umar Yar’Adua as the President, was named Acting President on February 9, 2010, following the doctrine of necessity initiative by the Senate of Nigeria, owing to President Yar’Adua’s prolonged medical trip to Saudi Arabia in November 2009.

    Following President Umaru Yar’Adua’s death on May 5, 2010, Acting President Jonathan took the oath of office as the substantive President on  May 6, 2010.

    Upon winning the next presidential election, Jonathan again took the oath of office on May 29, 2011 as the President but lost the 2015 presidential election, which he contested on the platform of the Peoples Democratic Party (PDP) to the candidate of the APC, now President Muhammadu Buhari.

    With Buhari rounding off his second term, amidst heightening political jostling among politicians in preparation for next year’s presidential election, the rumoured drafting of Jonathan by some interests within the APC has become an issue of interest to many.

    This is because, not only is he known as a PDP member, it is not yet in public that Jonathan has defected to the APC. The plot becomes more intriguing when viewed against the fact that the Buhari-government has not ceased to blame Jonathan for the nation’s woes, accusing him of being the cause of all the nation’s troubles.

    The fact that Jonathan chose to be ambivalent during the April 22 encounter with his so-called supporters, who urged him to declare, has further sustained the rumour, which now informed the debate about his eligibility in the face of the provision of Section 137(3).

    The 4th Alteration

    In view of the nation’s experience between 2011 and 2015, the National Assembly took it upon itself to effect some amendments to the Constitution, which resulted in the 4th Alteration to the Constitution. One of the issues addressed by the 4th Alteration was the question raised prior to the 2015 presidential election – whether Jonathan could take the oath of office as a president for the third time in the face of the provision of Section 137(1)(b) of the Constitution.

    Section 137(1)(b) provides that: “a person shall not be qualified for election to the office of President if he has been elected to such office at any two previous elections.”

    The question was litigated up to the Court of Appeal in a case, first filed at the High Court of the Federal Capital Territory (FCT) in 2012 by a member of the PDP, Cyriacus Njoku, with Jonathan, the PDP and the Independent National Electoral Commission (INEC) as defendants.

    Njoku contended among others that, having taken the oath of office twice as a president (2010 and 2011) Jonathan was barred by sections 135(2) and 137(1)(b) of the Constitution from contesting in 2015 for the post of president.

    In a judgment on March 1, 2013, Justice Mudashiru Oniyangi held in favour of Jonathan, a decision Njoku appealed at the Court of Appeal in Abuja in 2013.

    He raised two issues for determination in the appeal. They were:

    *Whether Section 135(2) of the Constitution which specifies a period of four years in office for the President is only available or applicable to a person elected on the basis of an actual election or includes one in which a person assumes the position of President by operation of law as in the case of Dr. Goodluck Jonathan.

    *Whether Section 137(1) (b) of the Constitution of the Federal Republic of Nigeria 1999, which provides that a person shall not be qualified for election to the office of President if he has been elected to such office at any two previous elections applies to the 1st Defendant who first took an Oath of Office as substantive President on May 6, 2010 and took a second Oath of Office as President on May 29, 2011.

    In its judgment on March 3, 2015 a five-member panel of the Court of Appeal was unanimous in holding that the oath that Jonathan took in 2010 was merely to complete the unexpired tenure of the late President Yar’Adua.

    It further held that by virtue of Section 135 (2)(b) of the 1999 Constitution, Jonathan only took his first oath as a president in May, 2011, adding that disqualification is through election, not oath taking.

    In the lead judgment, Justice Abubakar Yahaya said: ”In this appeal, it is not controverted by the appellant that the first oath taken by the first defendant (Jonathan) was the oath he took as the Vice President and not as President… But he took the oath in May 2010 to complete the unexpired tenure of the late Umaru Musa Yar’Adua.

    “Section 137(1)(b) disqualifies a person from contesting for president if he had been elected twice. Disqualification is through election and not oath taking. Election is a process of choosing a person to occupy a position by voting.

    “When election is given its literal meaning, it connotes when a voting is employed to choose a person for political office. This did not take place when Jonathan stepped into the shoes of his Principal who went to the great beyond.

    “To say these things were done is to import words not used by the constitution. Section 146(1) of the constitution cannot be deemed an election for a VP to step into the office of a President. Election involves conducting primaries by party, nomination, election and announcement of results. All these processes were not done.

    “If a Vice President succeeds a President that dies, that cannot be challenged. It is a mode of stepping into the vacant office provided for by the constitution. When a President dies, the Vice President automatically becomes President as provided for by Section 130 (1)(2) of the 1999 Constitution… It was not election that produced the first respondent (Jonathan) in May 2010, the oath he took then was not an oath of elected President as provided for by Section 180 of the Constitution.

    “The process of election was followed in 2011. The oath of office taken in 2011 was the first oath taken by the first respondent as an elected President having fulfilled all the process of election.… Again, the succession of a Vice-President to the office of a President, who died, in accordance with Section 146(1) of the 1999 Constitution, cannot be “deemed an election”, especially for the purpose of taking away a right that has been vested.

    “As stated earlier, an election under the 1999 Constitution involves primaries, nominations, voting and declaration of results. That is the mode prescribed in electing a President, and once it is so prescribed, it must be followed, and no other method can be employed.

    “All these processes can be challenged in a Court of law and if successful, the election would be annulled. But if a Vice-President succeeds a President who died, that cannot be challenged because it is a Constitutional provision, and the succession cannot be annulled.

    “It is a mode of assumption to the office of the demised President, an ‘appointment’ by the constitution, as it were, as no letter of appointment is necessary from anybody. The Vice-President automatically becomes the President, by virtue of his being the Vice-President.”

    It was in an effort to prevent the possibility of having someone occupy the seat of the president more than the constitutionally stipulated eight years, as Jonathan almost did but for his defeat in 2015 that the National Assembly added sub-section 3 to section 137 of the constitution.

    Section 137(3) provides: “A person who was sworn-in as president to complete the term for which another person was elected shall not be elected to such office for more than a single term.”

    The enactment known as the Fourth Alteration (No 16) Act 2017 was assented to in June 2018 by President Muhammadu Buhari.

    The debate

    Jonathan’s decision to keep his rumoured interest in contesting the next presidential election alive by electing to sound ambivalent on April 22 forced many, particularly law experts to begin to debate his eligibility or otherwise for the election in view of the provision of Section 137(3) of the constitution.

    A Senior Advocate of Nigeria, Femi Falana ignited the debate with his argument, last week, that Jonathan could no longer seek election to the seat of the nation’s president having been barred by constitutional provisions and judicial decisions by the Supreme Court.

    Falana said: “Dr. Jonathan is disqualified from contesting the 2023 presidential election. The reason is that, if he wins the election, he will spend an additional term of four years. It means that he would spend a cumulative period of nine years as President of Nigeria in utter breach of Section 137 of the constitution which provides for a maximum two terms of eight years.

    He further argued that in view of the provision of Section 137 (3) of the constitution, Jonathan could not seek a re-election to the office of the president having completed the tenure of the late President Yar’adua and sworn in again for a full four-year term in 2011 upon winning the presidential election in his own name.

    Although many lawyers, including Mike Ozekhome (SAN), Reuben Atabo (SAN), Abubakar Sani and Daniel Makolo have argued that amendment to the constitution which came into effect in 2018 could not be retrospectively applied to the Jonathan case that occurred in 2015, Falana thinks otherwise, citing judicial authorities to support his position.

    Falana argued: “Assuming without conceding that the amendment is not retrospective, it is submitted that under the current constitution, a president or governor cannot spend more than two terms of eight years. In other words, the constitution will not allow anyone to be in office for more than a cumulative period of eight years.

    “In Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 199 at 387 the Supreme Court stated that Section 180 (1) and (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of 4 years and if a second term, another period of four years and not a day longer.

    “In the case of Governor Ladoja v INEC (2008)40 WRN 1 the Supreme Court rejected the prayer of Governor Ladoja for 11 months’ extension to cover the period he was kept out of office through illegal impeachment,” he added.

    Other lawyers, including Professor Yemi Akinseye-George (SAN), Sebastine Hon (SAN), Musibau Adetunbi (SAN) and Tunde Falola are in agreement with the position held by Falana on the issue.

    Akinseye-George equally argued that Jonathan is no longer eligible for election to that office, noting that the principle against retroactive application of laws does not apply to the constitution.

    He added:  ”Although this amendment to the constitution was signed after he left office, it is applicable to him and any other person caught by the provision. Therefore, let those urging Jonathan to run stop fooling themselves. The plot is dead on arrival. If Jonathan is presented as a candidate, his candidacy will be nullified by virtue of Section 137 (3) of the constitution of the Federal Republic of Nigeria, 1999, as amended.”

    Hon, who shared the same view, noted that the 4th Alteration Act of 2017 amended both sections 137 and 182, by adding subsection (3) to each of those provisions, to bar a president and a governor who stepped in to complete the tenure a former holder of that office from being inaugurated into that same office more than once thereafter.

    He added: “This amendment was a proactive response to the decision of the Supreme Court in Marwa vs. Nyako (2012), where the issue of alleged tenure elongation by Governor Nyako was in issue. Section 12 of the 1st Alteration Act to the constitution, which would have cured the lacuna, did not effectively cover it; hence the makers of the constitution saw wisdom in effecting further amendments by way of inserting subsection (3) to each of the existing sections 137 and 182.

    “The mischief sought to be cured, in my humble opinion, is to prevent dominance by one individual in the political space, by stopping him from occupying such a high office applicable to his case for too long. Call it legislative wisdom to, as much as possible, curtail authoritarianism and dictatorship,” Hon said.

    While Adetunbi simply said he sees Falana’s position as “the correct position of the law, Falola dwelt on a legal analysis of the various angles to the debate and concluded that the 4th Alteration could be legitimately applied to disable Jonathan.

    Falola said: “Without mincing words, Section 137(3) of the constitution bothers on substantive matters, that is, the right to contest for the 2023 Presidential election in Nigeria. To this end, it cannot be interpreted retrospectively.

    “In other words, ordinarily, former President Jonathan cannot be prevented from contesting the 2023 Presidential election based on the provision of Section 137(3) of the constitution, which came into effect on the 7th day of June 2018, three years after he had been sworn in for a single term after completing the term of President Umoru Yar’adua

    “However, for every rule, there is always an exception. The question is, will violent be done to Section 137 (3) or the entire provisions of the 1999 Constitution if the said Section 137(3)  is not interpreted retrospectively to bar Jonathan who, having completed the term of the late President Umoru Yar’adua, was also elected for a single term, from contesting the 2023 Presidential election?

    “My humble opinion is yes. I say this from the angle of the law that, in interpreting the provision of the constitution or enactment, the court will have to look at the intention of the legislators. In this case, one may ask, what brought about the enactment of Section 137(3) of the constitution by the National Assembly in 2018?

    “The answer is very simple, President Jonathan, having completed the term of the late President Umoru Yar’adua, was also elected for a single term of four years. Apart from the foregoing, he equally contested in 2015 against the incumbent. Jonathan would have ended up spending nine years in office (part of Yar’adua tenure inclusive) if he had won the 2015 presidential election, contrary to the provision of the constitution which stipulates eight years of two terms for the President,” he said.

    Falola further argued that the National Assembly had no option than to enact the provision of Section 137(3) of the constitution to take care of the anomaly and the constitutional aberration that could have occurred had Jonathan succeeded in 2015.

    He added that in law, even though the literary rule of the interpretation of statutes is to the effect that where the words of a statue are clear and unambiguous, as it is in the instant case, the effect must be given to it.

    Falola argued that on the other hand, where such interpretation would lead to absurdity or some repugnancy or being inconsistent with the rest of the instrument, in which case the grammatical and ordinary sense may be dispensed with so as to avoid that absurdity and inconsistency.

    “This is what is called the Golden Rule in law. A more preferable interpretation that will suit the circumstance of the case,” he said.

    Falola added: “It is my humble position that, should this matter be tested in court for adjudication, definitely, the court may be urged to apply the Golden Rule of interpretation to in order to detect the intention of the legislators in enacting the provision of Section 137(3) of the constitution of the Federal Republic of Nigeria

    “There is no doubt the fact that the intention will definitely be to cure the absurdity that may likely  arise if a person (like Jonathan) is allowed to spend nine years in office as the President of the Federal Republic of Nigeria (assuming he wins 2023  Presidential election) contrary to the provision of the Constitution,” Falola said.

    In their counter arguments, Ozekhome, Atabo, Sani and Makolo are holding tenaciously to the position that the 4th Alteration cannot be applied retrospectively/retroactively and that Jonathan is at liberty to run in next year’s presidential election.

    Ozekhome argued that the antagonists of Jonathan running in 2022, in their strange line of argument, are mainly relying on Section 137(3) of the 4th Alteration without adverting their minds to sections 141 of the Electoral Act, 2010 (as amended) and section 285(13) of the same 4th Alteration to the 1999  Constitution.

    He added: “More revealing is that these antagonists are probably not aware of an extant and subsisting Court of Appeal decision (in the case of Cyriacus Njoku vs. Goodluck Jonathan and others (2015) LPELR-244496 where Jonathan was frontally confronted and challenged before the 2015 presidential election, on the same ground of being ineligible to contest the said 2015 election, having allegedly been elected for two previous terms of office.

    “The section 137(3) being relied upon by the antagonists was signed into law in 2018, three years after Jonathan had left office. Can he be caught in its web retrospectively?”

    In support of his argument that not even the constitution could be applied retrospectively, Ozekhome cited a portion of the Supreme Court’s decision in the case of Attorney General of the Federation vs. All Nigerian Peoples Party & 2 ORS. (2003) 15 NWLR (Pt. 844) 600, where the court held in 667 that: ‘A constitution, like other statutes, operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such legislations affect only rights which came into existence after it has been passed.’

    Ozekhome added that “It will be grossly unfair, unconstitutional, unconscionable and inequitable to deny Jonathan of the right to contest the 2023 presidential election when our extant laws and appellate court decisions permit him to.

    “The question of whether Jonathan really needs to subject his glittering and internationally acclaimed reputation and credentials to the muddy waters of a fresh competition with persons, some of whom were his personal appointees as president, is another matter altogether.

    “Only him, and not the present state of the laws in Nigeria, can answer that question and decide his own fate. But, as regards his eligibility to contest, Dr Goodluck Ebele Azikiwe Jonathan is pre-eminently constitutionally, morally and legally qualified to contest the 2023 presidential election,” he said.

    Atabo noted that Section 137(3) came into force after Jonathan left office, adding that it was meant to cure the lacuna in the 1999 Constitution particularly when the late President Yar’adua died and the task fell on Jonathan to complete the late president’s term of office.

    He added: “Certain issues arose as to whether he can go for another term from May 29th, 2015 and beyond. It is as a result of this development that the amendment was carried out by the National Assembly.

    “In a democratic society like Nigeria, legislations or Acts of parliament are not meant to be retroactive like in the military regime, but take effect from the day of assent by the President or Governor as the case may be.

    “It is therefore, my considered view that the amendment of the 1999 Constitution, which brought in Section 137(3) cannot be retrospective to bar Dr. Goodluck Ebele Jonathan from contesting, if he so desires,” Atabo said.

    While Makolo simply said he disagreed with the position held by Falana and others, Sani supported his position with judicial authorities and insisted that Jonathan was not disabled by any law.

    He added: “I believe that only the most bigoted and jaundiced opponent of the former President will continue to insist that he is constitutionally-ineligible to vie for the highest office – either next year or in any other election cycle.

    “I posit that the choice is solely his to make and there is absolutely no legal or constitutional impediment or bar to him doing so. I suspect that those who peddle a contrary narrative are motivated by less than altruistic considerations. Is anybody afraid of President Jonathan? That is the question,” Sani said.

  • Pitfalls of Section 850 of CAMA

    Pitfalls of Section 850 of CAMA

    Section 850 of the Companies and Allied Matters Act 2020 empowers the Commission to withdraw, cancel or revoke the certificate of an association at will.

    When this is done, it provides grounds for the subsequent dissolution of such association by an order of court.

    The case of Salomon v. Salomon is a locus classicus on the fact that a registered company under the law is different from its owners or members.

    It becomes a separate entity from its members upon its registration as a corporation. This is because incorporation confers upon the company the status of a legal person. This status is defined in Section 42 of the Companies and Allied Matters Act 2020.

    Once a company is incorporated, it is awarded a Certificate of Incorporation in accordance with Section 41 (6) of the Act, and this certificate shall be primary evidence of the fact that the requirements of the Act in respect of registration and matters precedent and incidental to it have been complied with, and that the association is a company authorised to be registered and is in fact duly registered under the Companies and Allied Matters Act 2020.

    However, Section 41 (7) gives the Corporate Affairs Commission the power to withdraw, cancel or revoke a certificate of incorporation. According to the Act, a withdrawal, cancellation or revocation of a Certificate of Incorporation may be carried out if it is discovered that such certificate was procured fraudulently, improperly or unlawfully. Section 41 (8) of the Act also provides that the withdrawal, cancellation or revocation of a certificate of incorporation may also be published in the Federal Gazette.

    In relation to incorporated trustees, Section 850 of the Act provides for the dissolution of an association by the court upon the application of the governing board, one or more trustees, the members of the association constituting at least fifty percent of the total membership of the association or the Commission itself. Hence, any of the four aforementioned categories can validly apply for the dissolution of an association.

    Furthermore, the grounds for the dissolution stipulated in the Act include – said where the aims and objectives of the association have been fully realised or where such aims and objectives have turned illegal; here the association’s period of existence has expired; where it is just and equitable to do so; or where the certificate of incorporation has been withdrawn, cancelled or revoked by the Commission.

    There shall, in addition, be a notice to members which may be affected by such dissolution. Also, extra property remaining after the satisfaction of assets and liabilities shall either be paid to associations with similar objects or a charitable object and not to any trustee or member.

    From the above, the grounds for the dissolution of an association includes where the certificate of its incorporation has been withdrawn, cancelled or revoked by the Corporate Affairs Commission, at will.

    However, there are no clearly stated grounds for the withdrawal, cancellation or revocation of the certificate of incorporation unlike the case of a company where such certificate has been fraudulently, improperly or unlawfully obtained.

    It is my opinion that the persons and entities qualified to apply for the dissolution of an association may not entirely act in the joint interests of its trustees.

    For example, the governing body or council may choose to act selfishly in the decision-making of the association and not protect the general interest. One or more trustees may also decide to compromise the association.

    The 50 percent membership requirement is also unjust on the argument that at least fifty-one percent should be stated as the standard.

    While the Corporate Affairs Commission must rightly be empowered to carry out their duties of revoking, cancelling or withdrawing the certificate of incorporation, it doing so at its will is extravagant.

    In conclusion, the grounds for dissolution of the incorporated trustee’s association is fair enough except with regards to the withdrawal of the certificate at will.

    The positive objectives intended by the Act are also defeated by the qualified applicants stated in the same. This is due to the possibility of conflicting interests, detrimental decisions and frustrating consequences to the association.

    Where a portion of the association believes that the association has fulfilled its objectives but the other half claims otherwise, there is a question of truth to be answered.

    In improving the state of the law in Section 850 of the Companies and Allied Matters Act 2020, a review of that provision is necessary.

    It is without doubt that there will be unending debate and chaos from the interpretation of the section.

    It is important to note that the Commission has also been vested with enough power and control over incorporated trustees, and so it is rather excessive that it also reserves the right to deprive the association of its certificate of incorporation at its own discretion.

    An attempt to amend the provision must ponder on the principles of fairness, equality of interests and justice.

    • Jesuloluwa is a 500 Level law student of the Adeleke University, Ede, Osun State.

     

  • Supreme Court urged to reverse judgment ceding Kano land to Dantata family

    Supreme Court urged to reverse judgment ceding Kano land to Dantata family

    The Supreme Court has been urged to reverse the April 7, 2022 judgment of the Court of Appeal, Kano ceding to individuals and firms allegedly associated with the Dantata family part of the about 5.743 hectares at City Centre, Kano allocated to Durbar Hotels Ltd.

    The prayer is contained in a notice of appeal filed in the name of Durbar Hotel  by the family of the later General Sani Abacha through its lawyer, Dr. Reuben Atabo (SAN).

    In the six-grounds notice of appeal, the appellant argued among others, that the Court of Appeal panel consisting Justices Boloukuromo Ugo, Ita Mbaba and Abubakar Lamido erred  when it partially upheld its earlier appeal against the March 6, 2018 judgment of the High Court of Kano State in a suit marked; K/483/2006.

    It listed the individuals and firms allegedly associated with the Dantata family to include Alhaji Aminu Dantata, International Services Nigeria Ltd, Niger Soap Factory Ltd, Bebeji Aluminium Industry Ltd, Dantata Investments & Security Ltd, Nigeria Reptiles Exporters Ltd, Namco Nigeria Ltd and John Mengulsolou Ltd.

    Others are Alhassan Dantata and Sons Ltd, Sea Dantainer Lines Ltd, Alhassan Dantata and Sons Merchandise Ltd, Sharad Engineering Industries Ltd, Bulk Commodities Nig Ltd, Main Line Transport Ltd and Dantata Motors Ltd.

    The Abacha family had sued at High Court of Kano in 2006, claiming that the land originally allocated to the Federal Government for the construction of Durbar Hotel, was later acquired by it during its privatisation in 1993 by the Federal Government’s Technical Committee on Privatisation and Commercialisation (TCPC).

    It stated that before it could commence the development of the land, Kasaba United Ltd, Cityscope Properties Ltd and Mohammed Sani encroached on the land, which informed its suit in 2006 filed in the name of Durbar Hotel.

    The family further claimed that during the pendency of the suit at the High Court, Kano, the named individuals and firms linked to the Dantata family equally encroached on the land, claiming to have got their allocations from the state government through the Commissioner for Land and Physical Development and the Attorney General and Commissioner for Justice.

    In its judgment on March 6, 2018, the High Court in Kano held that although the plaintiff established that the individuals and firms associated with the Dantata family had two certificates of occupancy (CoO) issued in 1983 and 2008 in respect of the same plots of land, the plaintiff failed to prove fraud beyond reasonable doubt.

    The Kano High Court further held that the plaintiff established its case against Kasaba, Cityscope and Mohammed Sani, voided their claim to any portion of the land, but declared that the plaintiff failed in its case against the individuals and firms linked to the Dantata family.

    The trial court found that one of the C of O  issued in 1983 to the individuals and firms associated with the Dantata family was earlier in time that the one issued to Durbar Hotel in 1995, but added that fact that another set of C of O was issued in 2008 on the same plots of land did not amount to fraud.

    Upon an appeal by the Abacha family, the Court of Appeal, Kano in its April 7, 2022 judgment in the case marked: CA/K/42/2018 affirmed the decision of the High Court in Kano and partially allowed the appeal, a decision that has now been appealed at the Supreme Court.

    In one of the grounds of appeal, the Abacha family argued that the Court of Appeal erred in law when it held that the appellant’s averment that the land was allocated to it in 1979 was not backed by documents.

    It noted that from the averments of the respondents, they all admitted the allocation of the land in dispute in 1979 in favour of the appellant.

    The appellant also faulted the Appeal court for agreeing with the trial court that the issuance of two sets of C of O in favour of the individuals and firms associated with the Dantata family in respect of the same plots did not constitute fraud.

    “The issuance of two sets of C ofO in respect of the. same plot of land by the 2nd and 3rd respondents (the Commissioners for Land and Justice) is not within the contemplation of the provisions of the Land Use Act.

    “The learned Justices of the lower court erred in law when they affirmed the judgment of the trial court that by the doctrine of priority of interest, the 6th, 8, – 21 respondents’ C of O were earlier in time than that of the appellant.

    “The doctrine of priority of interest could not have availed or inure in favour of the respondents having regard to the issuance of the two sets of C of O issued in 1983 and 2008 over the same plots,  bearing the same certificate numbers and names of holders without the revocation of the 1983 certificates,” the appellant said.

     

  • Ikorodu stool: Court adjourns hearing till November 9

    Ikorodu stool: Court adjourns hearing till November 9

    The Court  of  Appeal, sitting  in Lagos, has  fixed  November  9, this year for the hearing of an appeal  filed by the  Lambo  branch of  Lasunwon  Ruling House that challenged the installation  of Oba Kabir  Shotobi  as the  Ayangburen  of  Ikorodu, Lagos State.

    The Appeal Court, which was presided over by Justice  Obande  Ogbuiya, adjourned  the matter for hearing after granting the appellant’s motion  for extension of time to file an amended document which is to be presented before the court.

    The appellate  court  also adjourned  the  case due to the non- appearance  of the second  counsel.

    After listening to his submission,  the Judge ordered that the case  be adjourned for hearing till November 9 this year .

    It would be recalled that in suit No: IKD/57/2007, Mathew Adetayo Shodipo &Ors Vs Ezeliel Sodipo &Ors, which terms of settlement dated March  31, 2009. Consent  judgment  was dated 1st April, 2009, Chief Kabiru Adewale  Shotobi was installed as Odofin of Ikorodo officially in the year 2009.

    The office and position he held  from 2009 till 2015 when Justice M.A  Savage‘s judgment  allegedly ignored the  Consent judgment  of Justice H.A.O. Abiru of Lagos High Court, Ikorodu Division (now JCA).

    The judgment of the High Court, Ikorodu in  Suit No :IKD /57/2007B is to the effect  that the respondents are not bound by the consent Judgment in Suit No:IKD/57/2007, wherein it was agreed  that   the next   chieftaincy that comes to the Lasuwon  Ruling House  of Ikorodu, is conceded to the Lambo  branch, by the Adegorushen branch of which the 3rd  respondent (Chief Kabiru Adewale  Shotobi) is a member.

    The third respondent allegedly benefitted from the said Consent  judgment to become Odofin of  Ikorodu and later reneged to become the Oba.

     

  • NBA, police join forces on criminal justice administration

    NBA, police join forces on criminal justice administration

    The Nigerian Bar Association (NBA) and the Police have renewed their partnership and commitment to upholding the rule of law and administration of criminal justice.

    They emphasised the benefits of the Police implementing the Administration of Criminal Justice Act (ACJL), 2015 or the Administration of Criminal Justice Law (ACJL) of the states.

    They affirmed their resolve at a one-day workshop for the police in Lagos organised by the NBA – with the technical support of its Institute of Continuing Legal Education – in collaboration with the MacArthur Foundation.

    Titled, “The Role of the Nigeria Police in the Implementation of the Administration of Criminal Justice Act, 2015 and Compliance with Principles of Human Rights in Law Enforcement”, it featured the Lagos State Government and private justice sector stakeholders, among others.

    Guests at the event included the Lagos State Attorney-General Mr. Moyosore Onigbanjo, SAN, Executive Director Legal Defence Assistance Project (LEDAP) Pamela Okorodigwe, a former Deputy Director at the National Human rights Commission Mr. Saka Azimazi, lawyers in the Police, among others.

    Onigbanjo noted that Lagos works closely with the state Police command and has “consistently engaged through training and re-training of investigating police officers of the provisions of the ACJL and other investigative techniques as well as equipping and assisting the Nigerian Police, Lagos State Command.”

    He noted further, the state’s pioneering work in enacting the ACJL for law enforcement agencies and justice sector stakeholders to promote the rights of victims and suspects as well as address delay in the administration of criminal justice.

    Chairman of the NBA Institute of Continuing Legal Education, Tobenna Erojikwe, expressed delight that most states have domesticated the ACJA.

    Erojikwe emphasised the Police’s importance in the justice sector, saying “Anyone that has taken time to look at the ACJA or ACJL of the states will know that without the Police, there will be no conversation about administrations criminal justice anywhere in the world.

    “The role of the Police is indeed very significant in the conversations that we have around the administration of criminal justice.”

    He canvassed better resources for the police to enable them to implement the ACJA/ACJL.

    Erojikwe added: “It is hypocritical to expect their best if we do not invest time and resources in making sure that we have an optimal and effectively equipped police force that can live up to the expectations of the citizenry.”

    The Officer-in-Charge of the Legal Department at Zone 2 Headquarters in Lagos, Chief Superintendent Paul Idenyenmin stated that the Police had been following the provisions of the ACJL of Lagos.

    He identified one of the salient areas to include the recording of defendants’ confessional statements but noted several challenges.

    Idenyenmin said: “The law has protocols on how such statements should be recorded, but the area we have a challenge is with relation to facilities. Statement recording rooms are meant for defendants’ statements to be recorded, with cameras and audio equipment. Most police stations don’t have that.”

    We only have that at maybe Panti, State CID level, there is one being built at Zone 2. Several divisions, area commands where the bulk of crimes are, don’t have such facilities.”

    He also noted that the provision requiring lawyers to take up the role of lay prosecutors at magistrates’ courts may not be practicable for the Police, because of a shortage of manpower.

    “We also have the challenge of lay prosecutors, when it is said that if are not a lawyer you can’t prosecute. When you speak of manpower, legal manpower or the strength of the legal section of the police force, we (Police lawyers) can’t be in every magistrate court,” the CSP said.

    He called for government intervention in these areas to enable the police to adequately implement the ACJA/L.

     

  • NARSDA, OAL partner on regulation, licensing of space activities

    NARSDA, OAL partner on regulation, licensing of space activities

    The National Space Research and Development Agency (NASRDA) has signed a Memorandum of Understanding with a law firm, Olisa Agbakoba Legal (OAL), on the regulation and licensing of space activities.

    It  followed the enactment of Regulation on Licensing and Supervision of Space Activities, which empowers NASRDA to license all space activities in Nigeria.

    OAL had written the Minister of Science and Technology proposing the need to review Nigeria’s space policy and the legal framework for space administration in light of growing private sector interest in space and to attract investment.

    This led to the first national space council meeting chaired by President Mohammadu Buhari, at which he reaffirmed NASRDA as the premier space agency in Nigeria.

    The President directed all stakeholders in the space sector to abide by the regulatory framework provided by NASRDA.

    He aso directed the Minister of Science and Technology, Dr Ogbonanya Onu, to urgently prepare and submit to the Federal Executive Council for consideration and approval “a revised 25-year roadmap for the implementation of the National Space Policy.”

    Following the President’s directive, NASRDA and OAL collaborated to identify critical legislation and regulation to support Nigeria’s space administration.

    At a briefing in Lagos, OAL Senior Partner, Dr Olisa Agbakoba (SAN), noted that one of the most critical missing legislation is the licensing framework for space activities.

    He said: “NASRDA and OAL have worked together to fill this gap by the enactment of Regulation on Licensing and Supervision of Space Activities, 2015 (Vol.108, No.106, of 28th September 2021, Government Notice No.158, Page3 B4209-4235) which empowers NASRDA to license all space activities in Nigeria.

    “‘Space activities’ in the Regulation include ‘space objects and their control/management’.

    “NARSDA and OAL have also signed a Memorandum of Understanding, (MOU) to operationalise the Regulation.

    “This entails creation of an independent Directorate of Regulation, Licensing and Supervision of Space Activities, which shall be under the supervision of NARSDA to aggressively drive and implement the Regulation.”

    Agbakoba, a former Nigerian Bar Association (NBA) President, believes the Regulation “is a great leap forward in Nigeria’s quest to develop and harness the many potentials of space”.

    This, he said, is because hitherto unregistered space activities will now be registered.

    Noting that while no one knows how many space objects are within Nigeria’s jurisdiction, Dr. Agbakoba believes revenues from licence fees will run into billions of naira.

    “Given government’s very scarce resources, additional income from licensing revenue will add substantially,” he said.

    Head of Public Sector Practice Group at OAL, Collins Okeke, said the firm was working with the National Assembly to review the NARSDA Act to incorporate aspects of the UK Space Industry Act 2018 to bring it in conformity with international best practice.

    The firm, he said, was also working to enact legislation to give effect to some international conventions.

    They include the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies 1967; the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968; the Convention on International Liability for Damage Caused by Space Objects 1972 and the Convention on Registration of Objects Launched into Outer Space 1976.

    Head of Space Law Practice Group, Anne Agi, said OAL was the only law firm in Nigeria with a practice group dedicated exclusively to space law.

    “OAL has a long history of working with the Ministry of Science and Technology, the Nigerian Communications Satellite Limited (NIGCOMSAT), the National Assembly, policymakers, and, in particular, the NASRDA to help strengthen the legal, institutional, and regulatory framework that governs Space in Nigeria.

    “This includes reviewing and analysing the current space policy and creating a new policy that covers more aspects of space activities, (e.g. military policy, public policy, commercial policy); harmonising national laws with principles in international law and ensuring all areas/aspects of space activities are covered by domestic legislation,” Agi said.

  • SERAP seeks passage of data, digital rights bill

    SERAP seeks passage of data, digital rights bill

    Socio Economic Rights and Accountability Project (SERAP) has urged the Federal Government to work with the National Assembly to ensure the passage of the Digital Rights and Freedom Bill.

    The organisation also asked the two arms of government to gazette the Nigerian Data Protection Regulation (NDPR) in order to make it enforceable and as part of the Nigerian law.

    The request is contained in a new publication of SERAP titled: “We Are All Vulnerable: Crack Down On Data And Digital Rights In Nigeria”. The public presentation was held in Ikeja.

    SERAP, in the report, stated that “The Federal Government should take steps, as a matter of urgency, in ensuring that Nigeria becomes a respectable 21st Century digitised economy and a society governed by the rule of law.

    “The Federal Government through the National Assembly, should repeal all repressive and anachronistic laws and regulations that deny Nigerians their data and privacy rights as guaranteed by the Nigerian constitution and various other human rights treaties to which the country is a state party.”

    Presenting the Data and Digital Rights (DDR) monitor , Dr Bunmi Afinowi, a lecturer in the Faculty of Law, University of Lagos (UNILAG), Akoka, Lagos, described as worrisome practices , government’s interventions in data and digital governance as well as its manner of data collection which are not in line with known international best practices

    She also decried  the repressive actions  of  state agencies against data and digital rights in Nigeria.

    She said research had shown  a lot of multiplicity in data collection in Nigeria by governments and ascribed the situation to frequent policy somersaults.

    Dr Afinowi recalled that in 2014, the Central Bank of Nigeria (CBN) introduced Bank Verification Number (BVN) which entailed data capturing, noting that thereafter, Nigerians have been forced to undergo series of data capturing by telecommunication companies, National Identification Number (NIN) under  National Identity Management System scheme, Permanent Voters Card (PVC) among other.

    She regretted that research have shown that all these data submitted to different agencies of government and organizations “are susceptible to illegal intrusion, in essence, personal data of citizens are not safe.”

    She regretted “there is no security protocol and as such could be used by anyone who knows the recipient’s surname.”

    The university don lamented “rampant commercialization of personal data of Nigerians”.  noting that such data are often kept without the consent of the owner.

    She noted that frequent compromise and theft of these data have been reported in some places.

    As a way out, she advised that there should be one clear legislation on data collection in Nigeria and that one institution be saddled with the responsibility of data collection.

    Minister of Communications and Digital Economy, Isa Panatami, in a keynote address disclosed that government have licensed 103 data compliance organizations.

    He therefore stressed the need for all agencies to have data compliance officers to guarantee data protection.

    The minister who was represented by the Chief Executive Officer, National Data Protection Bureau (NDPB), Dr. Vincent Olatunji urged Nigerians to be careful about information and data they post online noting “we are all vulnerable in terms of the details we put out online.”

    He said NDPB is currently working on a Data Protection Bill which will soon be tabled before the National Assembly for legislation adding, “this bill will protect what we are doing in terms of protection of digital and data rights in Nigeria.”

    He disclosed that the country is working with other African countries to take care and protect what we are doing online. He said the country is also working with the World Bank and European Union(EU) to ensure that we have a robust  law for data and digital protection in Nigeria.

    “For us to be in line with global standards, all stakeholders should be able to apportion roles to themselves to ensure that the digital and data rights of citizens are taken care of and protected. The government cannot do it alone. We all must come together and ensure proper implementation of people’s digital rights”, he said.

    Earlier in a welcome address, Executive Director of SERAP,  Adetokunbo Mumuni, who was represented by the deputy director, Kolawole Oluwadare , lamented that there have been little awareness about data and digital rights adding that this explains why people so much information online without thinking whether they are protected or not.

    He stated for instance that when people buy online, “a faceless being is asking form your details including your account number and ATM cards and you easily provide it. You can imagine what can be done with your statement of account.”

    He said, :We saw the issues as they unfolded within the local context and see the need to create   awareness among people. Experience has shown that people may not understand their data and digital rights and that is what we need to understand.”

  • SERAP launches legal battle to name NDDC looters

    SERAP launches legal battle to name NDDC looters

    The Socio-Economic Rights and Accountability Project (SERAP) has filed a suit at the Federal High Court in Abuja to compel President Muhammadu Buhari to name the looters of the Niger Delta Development Commission (NDDC), reports Deputy News Editor JOSEPH JIBUEZE.

    When the forensic audit report on the Niger Delta Development Commission (NDDC) was submitted to President Muhammadu Buhari on September 2, 2021, many hoped that those responsible for looting the agency would finally be named and prosecuted.

    The President had ordered a forensic audit of the commission following allegations of gross financial improprieties.

    The forensic team comprised 16 field audit firms and a lead forensic auditor, with a mandate to examine 13,777 contracts awarded from 2001 to 2019 at a final contract value of over N6trillion.

    President Buhari vowed that all those who mismanaged the funds would be punished.

    “Going forward, we shall ensure every recoverable kobo is recovered for use in service of the people of this region and those found culpable shall face the law,” the President said.

    Seven months after the report was submitted, no charges has been filed against any NDDC looter or for abandoning a contract after mobilisation, nor have those indicted in the report been named.

    A leading civil-society organisation, the Socio-Economic Rights and Accountability Project (SERAP), has, therefore, sued President Buhari “over his failure to publish the names of those indicted in the alleged misappropriation of over N6 trillion in the running of the NDDC”.

    In a suit numbered FHC/ABJ/CS/1360/2021 filed at the Federal High Court, Abuja, SERAP is seeking “an order of mandamus to direct and compel President Buhari to publish the names of those indicted in the alleged misappropriation of over N6trillion in the running of the NDDC between 2000 and 2019.”

    The suit, which has Attorney-General of the Federation and Minister of Justice Abubakar Malami (SAN) as the second respondent, is before Justice Binta Nyako.

    SERAP is also seeking “an order of mandamus to compel President Buhari to direct Malami and appropriate anti-corruption agencies to bring to justice anyone suspected to be responsible for the missing N6trillion, and to fully recover any stolen public funds.”

    The group told the court: “It is in the public interest to promptly publish the names of those indicted in the audit report, and to ensure that they face prosecution, as appropriate.

    “The public interest in publishing the names of those indicted by the audit report outweighs any considerations to withhold the information, as there would be no prejudice against those whose names are published as long as the information is appropriately framed and truthful.

    “The Buhari administration has legal obligations under Section 15(5) of the Constitution 1999 (as amended) to abolish all corrupt practices and abuse of power, and article 26 of the United Nations Convention against Corruption to ensure effective prosecution of allegations of corruption.

    “The audit report raises prima facie evidence of grand corruption and its staggering effects in the Niger Delta.

    “Nigerians have the right to know the names of those indicted and other details in the report, as guaranteed under the African Charter on Human and Peoples’ Rights and the Freedom of Information Act.”

    SERAP is also arguing that publishing the report and the names of those indicted would remove the possibility of obstruction of justice, and provide insights relevant to the public debate on the ongoing efforts to combat grand corruption and the longstanding impunity of perpetrators in the country.

    The plaintiff, therefore, seeks “an order of mandamus to direct and compel President Buhari to “widely publish and make available to Nigerians the Forensic Audit Report on the NDDC submitted to him on September 2, 2021.”

    SERAP, in the suit filed by its lawyers Kolawole Oluwadare and Opeyemi Owolabi, told the court that Nigeria has made legally binding commitments under the UN Convention against Corruption to ensure transparent management of public resources, and unhindered access to public information.

    It added: “These commitments ought to be fully upheld and respected.

    “Directing and compelling President Buhari to publish the names of those indicted in the report would advance the victims’ right to restitution, compensation and guarantee of non-repetition, as well as improve public confidence in the fight against corruption.

    “Publishing the names of those indicted would be entirely consistent with Nigeria’s constitutional and international anti-corruption commitments.

    “Combating the corruption epidemic in the NDDC and reining in those indicted would alleviate poverty, improve access of Nigerians to basic public goods and services, and enhance the ability of the government to meet its human rights and anti-corruption obligations.”

    The applicant contends that despite the country’s enormous oil wealth, ordinary Nigerians have derived very little benefit from trillions of naira budgeted for socio-economic development in the Niger Delta.

    This, it said, is primarily because of widespread grand corruption and the entrenched culture of impunity of perpetrators.

    It added that Nigerians were entitled to the right to receive information without any interference or distortion, and the enjoyment of this right should be based on the principle of maximum disclosure, and a presumption that all information is accessible subject only to a narrow system of exceptions.

    SERAP added: “According to public interest test, even if the government demonstrates that the publication of the names of public officials would substantially harm a legitimate interest, it is nevertheless obliged to disclose the requested information if, as it is the case here, the public interest in disclosure is sufficient enough to overweigh any perceived harm.

    “The missing N6 trillion and over 13,000 abandoned projects in the Niger Delta have continued to have a negative impact on the human rights of Nigerians, undermining their access to basic public goods and services, such as education, healthcare, and regular and uninterrupted electricity supply.

    “Public schools have been left to crumble and wither away, and health care facilities in several parts of the region lack even the most basic of amenities.”

    The orders sought

    SERAP is praying for an order granting it leave to apply for judicial review to enable it seek an order of mandamus compelling the President to direct the AGF to widely publish the names of those indicted in the forensic report.

    It is also praying for an order granting it leave to apply for judicial review to enable it seek an order of mandamus compelling President Buhari to direct Malami and appropriate anti-corruption agencies to promptly bring those indicted to justice.

    SERAP, in an affidavit in support, deposed to by its Administrative Officer, Joel Ekong, noted that due to reports of widespread corruption in the NDDC, the President, through the Federal Executive Council, authorised the constitution of a forensic audit team.

    The deponent stated: “The forensic audit report on the NDDC is yet to be published or made public. It is a public document.

    “In the pursuit of its mandate, and in accordance with the expectations of the respondents as various Nigerian laws and treaty obligations to which Nigeria is a state party, the applicant wrote a letter dated 25th September, 2021 to the first respondent, copying the second respondent, wherein the applicant requested that the first respondent exercise his statutory powers as President to do the following:

    “a. To direct the Attorney General of the Federation and Minister of Justice Mr. Abubakar Malami, SAN to widely publish the names of those indicted in the alleged misappropriation of over N6 trillion in the running of the Niger Delta Development Commission (NDDC) between 2000 and 2019, as documented in the recently submitted Forensic Audit Report.

    “b. To direct the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, and appropriate anti-corruption agencies to promptly bring to justice anyone suspected to be responsible for the missing N6 trillion.

    “c. To ensure the full recovery of any misappropriated public funds.”

    SERAP stated that the letter was duly dispatched to the respondents and was acknowledged as received by them.

    “Since the receipt of the letters by the respondents and up till the filing of this suit, the first respondent has so far failed, refused and neglected to take some specific actions which he is obligated under the law to take.

    “The first respondent has an obligation to promptly direct the investigation of the allegations of mismanagement, diversion and stealing of public funds contained in the NDDC Forensic Audit and those suspected to be responsible brought to justice in accordance with Nigeria’s anti-corruption legislation.

    “This application is seeking leave to enable the applicant apply to the court to compel the first respondent to promptly, thoroughly, transparently and effectively direct the investigation of the allegations of mismanagement, diversion and stealing of public funds contained in the NDDC forensic audit report, and those suspected to be responsible brought to justice.

    “This suit is of major public interest as it borders on issue of national interest, public welfare, public interest of human rights, social justice, good governance, transparency and accountability and is in pursuance of the applicant’s mandate as anti-corruption advocate and human rights non-governmental organisation.

    “The alleged corruption has hampered the ability of the NDDC as the allegedly looted public funds could have helped the government to invest in key public goods and services and to improve access of Nigerians to these services.

    “The Nigeria Government has signed on to the Open Government Partnership (OGP), United Nations Convention on Anti-Corruption (UNCAC), African Union Convention on Preventing and Combating Corruption in Africa and the African Charter on Human and Peoples’ Rights and has even domesticated the African Charter as part of Nigeria’s domestic laws.

    “The first respondent did not reply the applicant’s letter nor has he taken any step to investigate the allegations of misappropriation of over N6 trillion in the running of the NDDC between 2000 and 2019, as documented in the recently submitted Forensic Audit Report.

    “The interest of the applicant is to promote the ongoing efforts to combat mismanagement of public funds, and to offer the government an important opportunity of being open and transparent with the citizenry.

    “I believe that it is in the interest of justice for the Applicant’s reliefs to be granted.”

    Applicant’s arguments

    SERAP crafted a sole issue for determination: “Whether this Honourable Court ought to grant the leave to enable the Applicant seek judicial review and an order of mandamus, having regard to the law and factual circumstances of this case.”

    In its written address, the applicant argued that given the responsibility of the office and high degree of consequences of neglect, the statutory duties of the President are mandatory.

    It referred to Section 15[5] of the 1999 Constitution, which provides: “The state shall abolish all corrupt practices and abuse of power”.

    SERAP argued that the President’s obligation to direct the investigation of the allegations of mismanagement, diversion and stealing of public funds in the NDDC “is also rooted in the President’s Oath of Office contained in Seventh Schedule of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”

    The NGO said the President’s obligation also extends to taking appropriate measures to promote transparency and accountability in the management of public funds.

    This, it said, would prevent their mismanagement and the resultant denial of essential public services to citizens .

    Besides, the applicant noted that the Chairman of the NDDC Board and members are statutorily appointed by the President in line with Section 2(2)(a)(b) of the NDDC Act.

    SERAP added: “The applicant submits that by virtue of the position and power held by the first respondent and the functions that the office imposes, it is his duty and responsibility to ensure that the serious allegations of grave and grievous allegations of corruption, as well as the impunity with which these violations are alleged also to occur, as reported in the NDDC are investigated.

    “We contend that that the failure of the first respondent to publish details of the forensic audit report and individuals indicted in the alleged misappropriation of over N6 trillion in the NDDC constitutes a grave violation of the duty placed on the Nigerian government to take appropriate measures to abolish corrupt practices and promote transparency and accountability in the management of public finances.

    “This failure to act against corruption may also be construed as tolerance for acts of impunity.

    “It is, therefore, in the interest of justice that the court grants this application to protect fundamental rights of Nigerians, and reduce the scope of the incidence of impunity and corruption in Nigeria.”

    Why SERAP sued

    Before filing the suit, SERAP had written to the President but got no response.

    It has urged him to “direct Malami to widely publish the names of those indicted in the alleged misappropriation of over N6 trillion in the running of the NDDC between 2000 and 2019, as documented in the recent Forensic Audit Report on NDDC.”

    SERAP also urged him “to direct Mr Malami and appropriate anti-corruption agencies to promptly bring to justice anyone suspected to be responsible for the missing N6 trillion, and to fully recover any misappropriated public funds.”

    In the letter dated September 25, 2021 and signed by SERAP’s Deputy Director Kolawole Oluwadare, the organisation said: “It is in the public interest to promptly publish the names of those indicted in the audit report, and to ensure that they face prosecution, as appropriate.

    “Taking these decisive steps would advance the victims’ right to restitution, compensation and guarantee of non-repetition, as well as improve public confidence in the fight against corruption.”

    The letter was copied to Malami, Independent Corrupt Practices and Other Related Offences Commission (ICPC) Chairman Prof Bolaji Owasanoye (SAN) and Economic and Financial Crimes Commission (EFCC) Chairman Abdulrasheed Bawa.

     

    1. Malami
    2. NDDC Interim Administrator Effiong Akwa
    3. SERAP Deputy Director, Kolawole Oluwadare

  • ‘Why legal profession must be sanitised’

    ‘Why legal profession must be sanitised’

    Chief Wole Olanipekun (SAN) on March 21 became the 50th Chairman of the Body of Benchers, the highest body in the nation’s legal profession. He succeeded Supreme Court Justice Olabode Rhodes-Vivour, while the second most senior Justice of the Supreme Court, Mary Odili takes his former position as the Vice Chairman. In this interview with ERIC IKHILAE, Olanipekun provides a peep into his plans for the group.

    Congratulations sir on your new assignment. How do you feel?

    I thank God that today, I have transited to becoming the 50th Chairman of the Body of Benchers.

    I am humbled, honoured and ecstatic at the matchless and remarkable opportunity afforded me to lead and pilot the affairs of the Body of Benchers for the next one year, having been elected as the Vice-Chairman on  March 25, 2021.

    In whatever position I found myself, I have always striven to represent our noble profession as an ambassador and exemplar, displaying the learning, good character and virtues which the law profession is reputed for, to the admiration of the non-legal communities.

    I pledge to continue to give my all to the services of the Body of Benchers as Chairman for the next year.

    And, in doing so, I will be calling upon all members for their cooperation, understanding, assistance, advice and counsel.

    Nobody knows it all, and no man born of woman can boast of the monopoly of wisdom. I am not insular.

     

    What is the importance of this group in the architecture of the nation’s legal profession?

    You will appreciate the importance of the body more when you know the calibre of people who have been its chairmen.

    I say that I am the 50th Chairman. You may ask me who was the first chairman? The first chairman was the first indigenous Chief Justice of Nigeria, Sir Adetokunbo Ademola. And, who was the second chairman? That scholar of international appeal, Teslim Elias.

    And you have the Irikefes, the Nnamanis, the Willaims of this profession, you have the Akinjides, you have all of them. And the 49th Chairman of the Body of Benchers is a brother and friend, the honourable Justice Bode Rhodes-Vivour.

    The Body of Benchers was inaugurated precisely on November 27, 1971.

    And, when you look at our history, you will see that it has been a potent body that is responsible for the regulation of the legal profession; calling lawyers to the Bar, maintaining discipline at the Bar and  all other ancillary are what the body is responsible for.

     

    *Who are members of this body?

    The Body of Benchers is made up of the very best in the profession. And that is why the law – Legal Practitioners Act –  says, ‘men of distinction.’ Not just of distinction, but of the highest distinction in the legal profession.

    It is a potpourri of all that is good, without the mixture or admixture of any that is bad.

    How do I mean? At the Body of Benchers, all Justices of the Supreme Court are members. The President of the Court of Appeal is a member, statutorily.  All Justices of the Court of Appeal, who are presiding over divisions, are members. All Chief Judges of states are members. The Chief Judge of the Federal High Court is a member. The Chief Judge of the High Court of the Federal Capital Territory is a member. All Attorneys General of all the states are members.

    Also, the Attorney-General of the Federation is a statutory member. The President and members of the Nigerian Bar Association,  nominated by the Executive of the association are members. The Chairman of the Council of Legal Education is a statutory member. And, you have scholars drawn from different sectors and sections of the profession.

     

    How true was the rumour that there was a crisis of succession in the Body of Benchers?

    The public has to know that this is a very disciplined body, in which succession is rancour-free.

    I know people have read a lot on the social media about the Body of Benchers, but I am informing you now that there is no problem there.

    You don’t litigate who becomes the Vice Chairman or the Chairman. It is there in our regulations. And the regulations of the Body of Benchers constitute a bye-law derivable from the Legal Practitioners Act.

     

    Sir, please tell us more about the succession process in the Body of Benchers.

    Succession is by transition. The Vice Chairman transits to the position of the Chairman at the expiration of the Chairman’s tenure.

    By this time last year, I was elected the Vice Chairman, coming from the Bar. There are two sides of the divide – the Bench and the Bar.

    Honourable Justice Bode Rhodes-Vivour assumed office as the Chairman last year, and I was elected as the Vice Chairman. It is only the Vice Chairman that is elected.

    Once the Vice Chairman is elected, on the lapse of the tenure of the Chairman, he/she (the Vice Chairman)  transits. He is not voted for again, it is automatic.

    In fact, it is only the Vice-Chairman that is elected for a term of one year certain; after which, he or she automatically assumes the position of the Chairman at the expiration of the tenure of the incumbent Chairman.

    It is as predictable, set-in stone and well organised as the ascendancy to the ancient Olubadan throne in Ibadan, Oyo State, South-West, Nigeria.

    But even at that, unlike the Olubadan title where the state governor still has to give approval and present the staff of office to the next Chief in line to the departed Olubadan, here at the Body of Benchers, the Vice-Chairman automatically assumes office upon completion of the one-year term of the serving Chairman.

    By the grace of God, the Jurist who assumes office as my Vice-Chairman today, will succeed me as Chairman, come end of March, 2023. That is our tradition. That is our goodly heritage.

    It is not something that anybody can stop, except death. So, I transited, and was not promoted. The practice is that, once the Chairman completes his tenure, the Vice Chairman steps in. The public should not be misled.

     

    With the ways things are structured, it would be difficult to experience leadership crisis.

    I want you to appreciate this. When you see an assembly of learned men and women, as we have in the Body of Benchers, what do you expect? Discipline, decorum, learning, profundity of thought and exchange of ideas for the betterment of our profession in particular and the enthronement of rule of law generally.

    And, when you have the rule of law enthroned, then you have a sanitised society, and we pray that the country becomes a sanitised society. That is what the Body of Benchers represents.

     

    What are your plans for the group in the next one year?

    On what I will do, I will try to build on what my predecessors in office have done. I have mentioned their names, 49 of them, including two women – my aunty, Hairat Balogun. And then, there is Justice Aloma (Mukhtar).

    We also have a good number of past Chief Justices of Nigeria, including Belgore, Uwais, Onnoghen, Mohammed,  Muhammad, all of them. There have also been past President and non-President of the Nigerian  Bar Association (NBA) who have also been Chairman of the Body of Benchers.

    These people have laid a solid foundation. And let us thank God for the likes of Adetokunbo Ademola and the likes of Elias.

    But, there is the need, I am not trying to pre-empt myself, for us to sanitise the profession in Nigeria today. I will not, at this stage, come out to say this is my agenda.

    “I will present my agenda to the body at the first meeting that I will chair, and that will be in July or so. At that meeting, I will role out my programmes within that one year.

     

    What major contributions has this body made to the law profession in the country?

    As at the time Adetokunbo Ademola was the Chief Justice of Nigeria, Elias was the Attorney General of the Federation. They worked together to bring about a unified Nigerian legal system, establishing the Council of Legal Education, which gave birth to the Nigerian Law School.

    I will say 99 percent of lawyers in Nigeria today are products of the Nigerian Law School. The Nigerian Law School is administered by both the Council of Legal Education and, by extension, the Body of Benchers.

    The Body of Benchers screens every person who wants to be called to the Bar. The Body of Benchers gives you certificate, the Body of Benchers approves, the Body of Benchers designs the forms…

    Beyond that, the Body of Benchers is responsible for the discipline of erring lawyers in Nigeria. There is this potent force that the Body of Benchers deploys, that is the Legal Practitioners Disciplinary Committee, otherwise called, the LPDC.

    That committee is like a court of law. All appeals from the committee go directly to the Supreme Court. The Committee has the power to adjudicate on any petition against any lawyer. It is free to discharge, free to acquit, free to warn, free to suspend, free to direct that the name of such a lawyer be deleted from the list of lawyers in Nigeria.

     

    Many, including the President of the Nigerian Bar Association (NBA), Olumide Akpata, have complained about the seeming declining standard of discipline in the profession. What is the LPDC doing?

    The LPDC is an organ of the Body of Benchers. The Chairman of the Body of Benchers, through the Body of Benchers, appoints the Chairman of the LPDC. But, the Body of Benchers, once the LDPC is constituted, has nothing to do with them.

    The Body of Benchers has no supervisory role over the LPDC. All they (LPDC members) is to report periodically, to the Body of Benchers at every one of its meetings, about their operations and activities.

    We (the Body of Benchers) cannot review their (LPDC’s) decisions; we cannot overrule them. We cannot direct them.

    And, as the Chairman of the Body of Benchers, I promise, just like my predecessors in office have done, we are going to give them (LPDC) free hand to do their work.

     

    There is this argument that a year tenure is too short for any Chairman to make a meaningful impact. Do you subscribe to this?

    It is a term that is very shot. But to me, it is also a term that you can acheive a lot, because, to the glory of God, I have been on that body since 1992. I became a Life Bencher in 2007, and I have learnt under so many past Chairmen.

    I have followed all the procedures and proceedings, I know the nitty-gritty, I know the corners there, I know the tricks and I know how the debates there are conducted.

    No body has the monopoly of knowledge. We ask God to direct us, because you are leading, you are leading your colleagues, this time around, not just from the Bar.

    I have been the President of the Nigerian Bar Association. That time, I was leading the Nigerian lawyers.

    Today, I am the Chairman of this big organisation, the highest in the profession, made up of even a serving Chief Justice of Nigeria, Justices of the Supreme Court, Justices of the Court of Appeal, Attorneys-General, colleagues of mine, one has to be very humble.

    One should have to be vindictive. You can’t even afford to be vindictive, because you are presiding over the affairs of people who are more knowledgeable than yourself, and you have to be very humble.

    But, I have a focus about the legal profession. We have to do something about it. And, what we have to do about the legal profession in Nigeria today is very urgent. I will present my programmes, my ideas to the next meeting of the Body of Benchers. And by that time.

     

    How do you react to the argument that the one-year tenure should be adjusted?

    The one year tenure is not too short. Ademola spent one year. Elias spent one year. All past Chairmen spent one year each. Let it remain like that. It supports it.There cannot be an extension.

    I have been the Vice Chairman for one year, and during that year, I performed some statutory functions and duties. One year is okay.

    We are talking of the legal profession and the Body of Benchers. The tenure has been entrenched. Nobody should disrupt it, and it won’t happen during my time.